Chapter 17 - Witnesses
Swearing in of witnesses
With the exception
of hearings before the Privileges Committee, there is no requirement in the
standing or other orders of the Senate for witnesses before the Senate or a
committee to be sworn. The power to take evidence on oath, however, is one of
the undoubted powers of the Houses and their committees under section 49 of the
Constitution (see Chapter 2, Parliamentary Privilege).
Standing order 35 provides for the
examination of witnesses to be conducted by a committee in accordance with
procedures agreed to by the committee, subject to the rules of the Senate. It
is open to a committee to decide that witnesses should be sworn but in most
cases this is not required. The swearing in of a witness has no effect on the
witness’s obligation to provide truthful answers to a committee or on the
Senate’s ability to deal with a recalcitrant or untruthful witness. Nor does it
affect the privileged status of committee proceedings. A witness who gives
false or misleading evidence, or evidence which the witness does not believe on
reasonable grounds to be true or substantially true, may be guilty of a
contempt regardless of whether the witness was sworn. If a committee requires a
witness to be sworn, however, it is a contempt for a witness, without
reasonable excuse, to refuse to make an oath or affirmation or give some
similar undertaking to tell the truth (Privilege Resolution 6(12)).
Privilege
Resolution 2 requires that witnesses before the Privileges Committee be heard
on oath or affirmation. As the Privileges Committee performs something like a
judicial function, it is considered necessary that evidence is taken by the
committee on oath.
Committees usually do not exercise their power to take evidence on
oath. Where witnesses provide committees with their views or opinions on the
subject of the inquiry, the taking of evidence on oath may not be appropriate
and, indeed, may inhibit the free flow of information to a committee. It may
also create invidious distinctions between witnesses if some are sworn and some
are not. On the other hand, it may serve to remind witnesses of the gravity of
the proceedings and the need to be truthful, particularly where inquiries
involve contentious issues of fact and it may have been necessary to compel
witnesses to attend by summons.
A witness may take an oath on the Bible or other religious text, such
as the Koran, or may make an affirmation. The following forms are used:
Oath
I
swear that the evidence I shall give before this Committee shall be the truth,
the whole truth and nothing but the truth, so help me God.
Affirmation
I
sincerely and solemnly affirm and declare that the evidence I shall give before
this Committee shall be the truth, the whole truth and nothing but the truth.
The oath or affirmation is administered in a committee by the secretary
to the committee.
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